For anyone managing their estate in the UK, knowing the difference between a living trust and a will is more than just a legal technicality — it’s a vital step in protecting your legacy and avoiding complications for your loved ones.
Both documents are commonly used to express wishes regarding the distribution of assets after death. However, they serve distinct functions and come with different processes, costs, and legal implications. Making the right choice depends on your financial situation, family structure, and your goals for privacy, probate, and control.
Whether you’re just starting to think about estate planning or reviewing your current arrangements, understanding living trust vs will is key to making informed, secure decisions.
What is a Will and How Does it Work?
A will is a legally binding document that outlines how a person wants their property, money, and possessions distributed after their death. In the UK, wills are governed by the Wills Act 1837, which sets out the requirements for a valid will.
At its core, making a will serves three main purposes:
- Distribution of assets: It specifies who inherits what.
- Appointment of executors: These are the individuals responsible for carrying out the terms of the will.
- Guardianship of minor children: If applicable, it names who will take care of dependants.
Types of Wills
There are several types of wills used in the UK, each with distinct use cases:
- Single Will: For individuals making independent arrangements.
- Mirror Will: Common among spouses or partners; they mirror each other’s intentions.
- Joint Will: A single document signed by two people, less common and less flexible.
- Living Will: Not to be confused with a will in the traditional sense, this deals with medical care preferences before death.
Legal Requirements for a Valid Will in the UK
For a will to be legally valid, it must meet the following criteria:
- The person must be over 18.
- The will must be made voluntarily and without pressure.
- The person must be of sound mind.
- It must be in writing.
- It must be signed by the person making the will in the presence of two witnesses, who must also sign it.
What Can Be Included in a Will?
A well-drafted will can cover a wide range of matters, including:
- Allocation of specific possessions (e.g., jewellery, heirlooms)
- Distribution of savings, investments, and property
- Naming guardians for underage children
- Stating wishes for funeral arrangements
- Appointing executors to manage the estate
Execution and Probate
Upon death, the executor applies for probate, a legal process that gives them authority to carry out the will’s instructions. This can take several months depending on the complexity of the estate.
Probate involves:
- Valuing the estate
- Paying off any debts and taxes
- Distributing the remaining assets according to the will
The downside? Probate is a public process, and it can be time-consuming and costly, especially for larger estates.
What is a Living Trust and How Does it Work?
A living trust, also known as an inter vivos trust, is a legal arrangement in which a person (the settlor) transfers assets into a trust during their lifetime. These assets are then managed by a trustee for the benefit of named beneficiaries.
Although more common in the United States, living trusts are used in the UK — particularly by individuals seeking greater privacy, faster asset distribution, or more complex control over how their estate is handled.
Core Features of a Living Trust
- It is created while the settlor is still alive.
- The settlor can also be the initial trustee, maintaining control over the assets.
- It can be revocable (can be changed or cancelled) or irrevocable (permanent and harder to alter).
- Upon the settlor’s death, the trust continues to operate without the need for probate.
Living trusts offer a probate-free alternative to wills, making them attractive for high-value estates or people who want to keep matters private.
Revocable vs Irrevocable Trusts
| Feature | Revocable Trust | Irrevocable Trust |
| Control | Settlor retains control | Trustee has full control |
| Flexibility | Can be altered or cancelled | Cannot be changed easily |
| Tax Impact | Part of the settlor’s estate for tax purposes | May offer tax advantages |
| Privacy | High | High |
| Probate Avoidance | Yes | Yes |
Revocable trusts are more flexible but do not offer significant tax benefits in the UK. Irrevocable trusts, while less adaptable, may reduce inheritance tax exposure and protect assets from certain liabilities.
How is a Living Trust Set Up?
Setting up a living trust in the UK involves:
- Drafting a trust deed with the help of a solicitor.
- Transferring assets (property, savings, investments) into the trust.
- Appointing trustees to manage the assets according to the terms of the trust.
- Naming beneficiaries who will benefit from the trust either during the settlor’s life, after their death, or both.
Key point: Once assets are transferred into a trust, they are no longer legally owned by the settlor — they belong to the trust itself.
Control and Privacy
One of the main reasons people choose living trusts is control. You can stipulate how and when assets are distributed — for example, setting age thresholds or tying distributions to life events.
Living trusts also offer greater privacy. Unlike wills, they are not made public, and the probate process is avoided entirely, which can speed up distribution and reduce administrative burden.
Why Living Trusts Are Less Common in the UK
- The UK probate system is generally less burdensome than in the US.
- Inheritance Tax (IHT) planning is typically done through other types of trusts or reliefs.
- Legal and administrative costs of setting up a living trust can be high and may not justify the benefits for simpler estates.
That said, for individuals with complex estates, overseas assets, or a strong desire for privacy, living trusts can still be a very useful tool.
Living Trust vs Will: Key Differences Explained
Choosing between a living trust vs will depends on multiple factors — legal structure, cost, control, privacy, tax implications, and how assets are passed on. Here’s a clear, practical comparison to help weigh up the options.
1. Legal Structure
- Will: A testamentary document that only takes effect after death. It must go through probate to be enacted.
- Living Trust: A legal arrangement created during the person’s lifetime, operating as a separate legal entity. It can take effect immediately and survive the settlor’s death.
Bottom line: A will governs the estate after death. A trust can govern it before and after death.
2. Timing and Execution
- Will: Comes into force only upon death. Requires submission to a probate court.
- Living Trust: Can be active as soon as it is created and funded. Assets are managed by trustees without the need for probate.
Key takeaway: Living trusts allow for quicker access to assets by beneficiaries.
3. Control and Flexibility
- Will: Allows you to name executors and guardians, but once you die, you lose all control over the estate. The probate process governs everything.
- Living Trust: Offers more flexible control over when and how beneficiaries receive assets. You can set conditions, create staggered distributions, or appoint replacement trustees.
Insight: A living trust gives more lifetime control and can help manage assets if the settlor becomes incapacitated.
4. Privacy
- Will: Becomes a public document after probate. Anyone can request a copy.
- Living Trust: Remains private, as no court process is required.
Real-world impact: High-net-worth individuals or those with sensitive estate matters may prefer a trust for this reason alone.
5. Costs
- Will: Cheaper upfront (legal fees typically range from £100 to £500 depending on complexity).
- Living Trust: More expensive to set up (often between £1,000 to £2,500), with ongoing administrative costs.
Long-term view: Wills may save money now but lead to more expense during probate. Trusts cost more now but may reduce later legal fees and delays.
6. Inheritance Tax and Financial Planning
- Will: Does not affect your estate’s Inheritance Tax (IHT) liability.
- Living Trust: Certain trusts (especially irrevocable ones) can reduce IHT, although most living trusts in the UK are revocable, and therefore still subject to IHT.
Caution: UK tax law is complex. Trusts used for tax planning require professional advice and must comply with HMRC reporting obligations.
7. Probate Implications
- Will: Probate is mandatory, and the entire estate is frozen until the grant is issued.
- Living Trust: Probate can be avoided for assets held in the trust, allowing for smoother transition and faster asset release.
This is often the defining difference for those who choose trusts.
Advantages and Disadvantages of Each Option
There’s no universal answer when it comes to living trust vs will. Each has its strengths and limitations, depending on the estate’s complexity, family dynamics, and the individual’s goals. Here’s a breakdown of the benefits and drawbacks to help clarify which option might work best.
Advantages of a Will
- Simple and cost-effective: Easier and cheaper to create.
- Suitable for straightforward estates: Ideal if you have limited assets or standard distribution wishes.
- Can include guardianship provisions: Essential for parents of minor children.
- Recognised and established: Wills are universally understood by UK legal and financial systems.
Drawbacks:
- Requires probate, which can be time-consuming.
- Becomes public once submitted.
- Offers no control after death beyond what’s written.
- Does not protect against incapacity during your lifetime.
Advantages of a Living Trust
- Avoids probate: Assets can be distributed quickly and privately.
- Maintains control: You can set conditions for how and when beneficiaries inherit.
- Effective in case of incapacity: Trustees can step in if you’re no longer able to manage your affairs.
- Privacy: Details of your estate are kept out of the public record.
Drawbacks:
- Cost: Higher legal and administrative expenses to establish and manage.
- Complexity: More planning and legal structuring required.
- Not always tax-efficient: Revocable living trusts don’t reduce IHT in most cases.
- Less commonly used in the UK, which may limit awareness among some solicitors or institutions.
Common Misunderstandings about Living Trusts and Wills
There are several misconceptions about living trust vs will, especially in the UK where living trusts are less commonly used. Clearing up these misunderstandings is crucial for making informed estate planning decisions.
“A Will Avoids Probate”
False. A will guarantees that your estate will go through probate. It must be validated by a probate court before your executors can act on your wishes. This process can delay distributions, freeze access to funds, and become stressful for beneficiaries.
Only a living trust — if properly funded — can bypass probate altogether.
“Living Trusts Are Only for the Wealthy”
Not true. While living trusts are often associated with high-net-worth estates, they can benefit anyone who:
- Owns property in multiple jurisdictions
- Wants more privacy around their estate
- Is concerned about incapacity or contested wills
- Has complex family dynamics (e.g. blended families)
Even mid-sized estates can benefit from the added control and smoother transition that trusts offer.
“You Can’t Use Both a Will and a Trust”
Incorrect. In fact, many people use both. A common approach is to create a living trust for the majority of assets, and a “pour-over will” for any residual items not transferred into the trust.
The will acts as a backup, ensuring no assets are left outside of legal protection.
“Wills Can Do Everything a Trust Can”
Not quite. Wills and trusts serve different legal functions. A will is a static set of instructions activated after death. A trust is a dynamic structure that can operate during life, at death, and beyond.
Key differences include:
- A will offers no lifetime management of assets.
- A will cannot bypass probate.
- A will doesn’t offer conditional or staged distribution in the same way a trust can.
“Creating a Trust Means Giving Up Control”
This applies only to irrevocable trusts. A revocable living trust allows you to maintain control of all assets during your lifetime. You can change trustees, add or remove assets, amend beneficiaries, or dissolve the trust entirely — so long as you have mental capacity.
Frequently Asked Questions
1. What is the main difference between a living trust and a will?
The main difference between a living trust and a will is when and how they take effect. A will comes into force only after death and requires probate. A living trust, however, is effective during your lifetime and continues after death without going through probate. This distinction is critical when considering speed, privacy, and control over asset distribution.
2. Does a living trust replace a will in the UK?
Not entirely. Even if you use a living trust, you should still have a “pour-over” will to handle any assets not placed in the trust before death. The debate around living trust vs will is not always either/or — many estate plans include both for full coverage.
3. Is a living trust legally recognised in the UK?
Yes, living trusts are legally recognised in the UK. They are often used for estate planning, especially where privacy, control, and probate avoidance are priorities. However, they are not as widespread as in the US, and UK-specific legal advice is crucial when setting one up.
4. Which is more cost-effective: living trust or will?
Initially, a will is more affordable to draft and execute. A living trust has higher setup and legal fees but may save money in the long run by avoiding probate. When evaluating living trust vs will from a cost perspective, you must consider both upfront costs and future administration expenses.
5. How does probate differ between a will and a living trust?
All wills in the UK must go through probate — the legal process that validates the will and gives executors the authority to act. Living trusts bypass this process because the assets are already held in trust, with trustees ready to distribute them. This is one of the most significant distinctions in the living trust vs will comparison.
6. Can I change a living trust once it’s set up?
If it’s a revocable living trust, yes. You can amend, revoke, or restructure it at any time, as long as you have mental capacity. This flexibility is one of the strong arguments in favour of living trust vs will, especially for people whose circumstances may change.
7. What happens to property held in a living trust after death?
Upon your death, the trustees continue managing and distributing the assets according to the terms set out in the trust deed. Because the assets are not part of your personal estate, they are not subject to probate. This ensures a quicker and more private transfer than a will.
8. Can a living trust help reduce Inheritance Tax (IHT)?
A revocable living trust does not remove assets from your estate for IHT purposes. However, some irrevocable trusts might offer tax planning advantages. In the living trust vs will debate, trusts are sometimes used as part of a wider IHT strategy, but they must be designed carefully and in line with UK tax law.
9. Can I use a will and a living trust together?
Yes, and many people do. A living trust is often used for the main estate, while a will covers any residual items or personal wishes not included in the trust. When comparing living trust vs will, combining both can provide the most complete protection.
10. What if I don’t have either a will or a living trust?
If you die intestate (without a will or trust), your estate is distributed according to the UK intestacy rules, which may not reflect your wishes. You lose control over who inherits and how. No matter where you fall in the living trust vs will discussion, not having either is the worst option.
11. Is a living trust better for managing overseas property?
Often, yes. Property owned abroad can complicate probate and inheritance processes. A living trust can simplify international estate planning by avoiding multiple probate processes across jurisdictions. This is one area where the living trust vs will debate often leans towards trusts.
12. Can a will be contested more easily than a trust?
Generally, yes. Wills are more frequently challenged in court — due to perceived unfairness, coercion, or errors in execution. A living trust, being private and less transparent to the public, often faces fewer legal challenges. This makes it a strong choice in complex family arrangements.
Ready to Secure Your Legacy?
Understanding the key differences in the living trust vs will debate is just the first step. The next is putting a legally sound, personalised plan in place that protects your assets, honours your wishes, and brings clarity to those you care about most.
At Salam Immigration, we provide tailored estate planning guidance grounded in UK law. Whether you’re starting from scratch, updating a will, or exploring if a living trust suits your situation, our expert advisors are here to help you make confident, informed decisions.
Book a confidential consultation today
